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Service Tax - Case Laws
Showing 81 to 100 of 205 Records
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2017 (4) TMI 945
Penalty u/s 78 of FA, 1994 - GTA services - Scientific and Technical Consultancy services - appellant had utilised the services of a foreign service provider for management and maintenance service during the period 2007-08 to 2010-11 and paid an amount of ₹ 1,88,17,627/- to the foreign service provider - contention of the Department is that the assessee by not taking registration for Management and Maintenance or Repair services received from foreign service provider and by not disclosing the value of the said service in their returns are guilty of suppression of facts and are liable to pay penalty - reverse charge - Held that: - suppression of facts cannot be alleged on mere non-declaration in the returns when the issue whether service tax is payable on the said services was contentious as several litigations were pending - In the case of Vijay Television (P) Ltd. Vs. CST, Chennai [2008 (7) TMI 232 - CESTAT CHENNAI] it was held that mere non-declaration of details in the ST-3 returns cannot be a ground for invoking the extended period - penalty set aside.
Penalty u/s 73(4A) and Section 77 - Held that: - Since the appellant has not filed proper returns and had not taken registration for the said service, appellant is liable to pay penalty u/s 77 - Since the appellant has paid service tax along with interest before issuance of SCN, Section 73(3) would apply and therefore the penalty imposed u/s 73(4A) is set aside.
Appeal disposed off - decided partly in favor of assessee.
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2017 (4) TMI 943
Refund of unutilized cenvat credit - export of services - unregistered premises - case of assessee is that in the absence of a statutory provision, prescribing that, registration of the premises was mandatory for availing input service tax credit, the Assessee could not be denied refund of unutilized cenvat credit on input services - Whether the decision of CESTAT i.e. Respondent No.1 in allowing refund of Cenvat credit even without registration is correct? - Held that: - Mere perusal of Rule 5 of the 2004 Rules, would, inter alia, show that where a service provider, provides an output service, which is exported, without payment of service tax, he would be entitled to refund of cenvat credit, as determined by the formula provided in the Rule - Rule 5 of the 2004 Rules does not stipulate registration of premises as a necessary prerequisite for claiming a refund - refund allowed - appeal dismissed - decided against Revenue.
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2017 (4) TMI 903
Agency fee - Consulting Engineer Service or not? - tripartite agreement - whether agency fee received by M/s. IRCON is bundled alongwith the cost of road project or is a separate fee received by them for providing consulting engineer service? - Held that: - The admitted facts are that there was a Tripartite Agreement dated 31.08.2004 for the construction/up-gradation/commissioning and maintenance of different road projects in the state of Bihar under PMGSY. Under the agreement, IRCON was selected as executing agency for construction/up-gradation/commissioning of the project - The appellants are neither the owner of the constructed roads nor do they construct the road themselves. They have merely provided the technical capabilities and expertise in the management and supervision of projects relating to construction of roads, for which they have received the agency fees. It is also clear from the Tripartite Agreement that the agency fee did not include the cost of road construction, materials or charges for the labour. It is also clear from the Clause 11.2 of the agreement that M/s. IRCONs fee covers the cost of the preparation of DPR, cost involved in inviting and deciding tenders but the cost does not covers the cost of advertisement of tenders in the news papers. In the same clause it is mentioned that latter shall form part of the project cost, which clearly shows that M/s. IRCON s fee is not part of the project cost.
The receipt of consultancy fee from the Govt. of Bihar for the construction of rural roads was deliberately suppressed by the appellant and the appellants mis-declared the value of taxable consulting engineer services provided by them. Therefore, the penalty imposed is justified.
Appeal dismissed - decided against appellant.
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2017 (4) TMI 902
Banking and Other Financial Services - taxability of amount collected by the EPFO towards, inspection charges and administrative charges, penal damages, penal interest from defaulters. - appellant is involved in collection of contribution from the employers covered by the provision of the Act, collection of inspection charges and administrative charges, penal damages, penal interest from defaulters and disburse accumulated provident fund to the Members alongwith interest, pay various kinds of pension benefits to members and to family members and incur expenses in administering the scheme - Revenue entertained a view that the appellants are engaged in providing taxable service under the category of “Banking and Other Financial Services - Held that: - the appellant is a statutory authority created for a specified welfare function. Section 1 (3) of EPMF & MP Act stipulates that it applies to establishments of specified categories, mainly employing 20 or more persons. The schemes framed under the Act are to be laid in the Parliament as mentioned in Section 6D. Section 7A talks about determination of moneys due from employers. Such determination, in case of dispute, will be resolved by the officers mentioned therein.
The appellant is concerned with ‘Public’ – namely the employers who are governed by the EPMF & MP Act. The employers are governed by the said Act for delivery of welfare benefits to the employees (members of the Fund). The appellant is an “authority” having vested with statutory powers to enforce the due contribution of fund, administration charges, penal charges etc. The appellant has power to impose penal consequence on employers for violation of any provisions of EPMF & MP Act, and also for coercive recovery of dues.
The fee and other charges collected by the appellant from the employers in the present dispute are fixed by the law with no discretion or option vested with appellant or the employers. As such these cannot be considered as amounts received for providing any taxable service of BOFS.
The employees who ultimately benefit, have not paid any consideration to the appellant. They only contributed their part of fund, through the employer, to the appellant. The contribution to the fund is not the subject matter of disputed tax liability. The other charges like administrative charges, inspection charges paid by the employers, are being subjected to service tax. We find that in the absence of a service provider and service recipient relation between the appellant and the employers, no service tax liability can arise in the transaction.
The exemption now granted vide N/N. 9/2010-ST to EPFO (appellant) has no relevance to decide their tax liability during the present disputed period which is under pre-negative list based tax regime. We note that the service tax liability on various services rendered by Government or statutory /public authorities under went statutory changes after the new tax system (based on negative list) was introduced with effect from 01/07/2012. In fact, the Circulars dated 18/12/2006 and 23/08/2007 (code 999.01) issued in the pre-negative list regime are no longer applicable, as clarified by Board vide Circular No. 192/02/2016 – ST dated 13/04/2016.
The appellants are not liable to pay service tax on their statutory activities performed in terms of EPMF & MP Act, 1952 - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 901
Business Auxiliary Service - agreement with holding company for providing promotional activities - Held that: - The issue involved in this case is no more res-Integra in view of the decision in the case of [2016 (7) TMI 1209 - CESTAT NEW DELHI], while examining the scope of Export of Service Rules, 2005 with reference to BAS, where it was held that destination has to be decided on the basis of place of consumption, not the place of performance of service in case of Business Auxiliary Service - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 900
Abatement - N/N. 1/2006-ST dated 01/03/2006 - denial on the ground that the assessee has availed credit - Held that: - the appellants have reversed the full Cenvat credit availed alongwith applicable interest later. All the credits alongwith applicable interest, have been reversed before adjudication by the Commissioner - reliance was placed in the case of CCE Jaipur-I Versus M/s. Sanjay Engineering Industries [2016 (8) TMI 93 - RAJASTHAN HIGH COURT], where it was held that subsequent reversal of credit even after utilization of the same and clearance of the final product will relate to a situation as if no credit was ever availed - the denial of abatement under N/N. 1/2006-ST is not justifiable - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 899
Adjustment of excess amount of service tax paid - Rule 6(4A) of Service Tax Rules, 1994 - denial on the ground that adjustment is possible only for succeeding month or quarter, whereas in the present case excess amount of service tax paid in the 4th quarter of financial year 2012-2013 and the adjustment of the said excess amount made in 2nd, 3rd and 4th quarter of financial year 2013-2014 - Held that: - reliance placed in the case of M/s. Jubilant Organosys Ltd. Versus CCE, Meerut-II [2014 (10) TMI 138 - CESTAT NEW DELHI], where it was held that adjustment of service tax paid in excess in certain months towards the service tax liability of the subsequent months cannot be denied on such technical grounds - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 898
Refund claim - denial on account that appellant had not obtained registration and in the case of refund claim for 4/2012 to 6/2012, the refund claim made on 28.06.2013 is barred by limitation - Circular issued by Registry is sufficient compliance of Rule 6(A) of CESTAT Procedure Rules or not? - Held that: - The issue whether assessee is eligible for refund for the period prior to obtaining registration is settled by the judgment in the case of the M/s m Portal India Wireless Solution Pvt. Ltd.[2011 (9) TMI 450 - KARNATAKA HIGH COURT], where it was held that Registration not compulsory for refund - the rejection of refund on the ground that appellant had not obtained registration before filing of refund claim is not legal or proper.
Time limitation - Held that: - In the case of export of services, the relevant date (starting point) for computing the period of one year as prescribed in Section 11 B of C.E Act would be the date of receipt of FICR - The Ld. Counsel does not have a case that when computed from the date of receipt of FICR, the refund claim filed for quarter June, 2012 is fully within time. He submitted that some of the transactions would be within time. This aspect has to be verified by the adjudicating authority.
Appeal partly allowed - part matter on remand.
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2017 (4) TMI 897
Renting of Immovable Property Service - interest - penalties - case of appellant is that the appellant did not collect the service tax from the tenants as the tenants refused to pay service tax. For this reason appellants failed to discharge the liability of service tax to the department. However they later paid the service tax along with interest. The interest amount for the period from 08.05.2010 onwards was calculated and paid by appellant. That appellant is not liable to pay interest prior to this date and also not liable for penalty since the service were made taxable with effect from 01.07.2007 retrospectively.
Held that: - The Hon’ble Apex Court in the case of Star India Pvt. Ltd.[2005 (3) TMI 10 - Supreme Court], held that interest need not be paid for the liability it is created retrospectively - interest on duty cannot be recovered from the respondents as liability to pay interest is in the nature of a quasi-punishment.
The appellant is not liable to pay interest prior to 08.05.2010 and also the penalty. The appellant has paid the interest on the entire demand after 08.05.2010 till payment - the demand of interest and the penalty imposed u/s 76 is unsustainable. However, the late fee imposed u/s 70 of the FA, 1994 upheld.
Appeal disposed off - decided partly in favor of assessee.
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2017 (4) TMI 896
CENVAT credit - duty paying documents - Held that: - appellants have availed CENVAT credit on VAT and also on the personal telephone calls used by employees and also in some cases they have taken credit by double entry. Credit has been taken on documents for purchase of items and not on service tax. In certain cases, no documents have been furnished at all. The appellants, therefore, have no case on merits.
SCN has been issued invoking the extended period of limitation alleging suppression of facts with intent to evade payment of duty. Therefore, as the Commissioner (Appeals) has recorded his finding that there is no intention on the part of appellant to evade payment of service tax, the demand raised invoking the extended period also becomes unsustainable.
Demand is time barred - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 895
Taxability - manpower recruitment and supply services - payments received by lessor on behalf of the workers used by the lessee of a factory for carrying out their operations in the category of ‘manpower recruitment and supply services’ - Held that: - we do not find any role for the respondent as an intermediary. The employees, originally recruited by the lessor, were placed at the disposal of the lessee as part of that agreement which allowed the latter to operate the distillery. It would appear that the terms of remuneration are also not the subject of the agreement between the lessor and the lessee and we do not find any clause that specifies period of employment of these workers with the lessee - nature of the transaction between the respondent and the lessee and its failure to conform to the description of the taxable service takes the service out of ambit of taxable service - appeal dismissed - decided against Revenue.
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2017 (4) TMI 861
Computer training services - Held that: - the Tribunal held that in the facts and circumstances, the demand within the limitation and normal period deserves to be confirmed. The demand beyond the normal period cannot be confirmed and no suppression is proved.
Manpower recruitment service - Held that: - The law was amended and it is only from 16th June, 2005 that manpower recruitment or supply to third parties is brought within the net of the tax - the assessee was held liable to pay service tax with effect from 16th June, 2005 under that category.
Intellectual property service - Business support service - Held that: - the respondent assessee has the property rights over a software, which was allowed to be used by their clients. That is why the demand within the limitation period was confirmed - As far as the business support service is concerned, even on that count the demand is confirmed.
Appeal dismissed - decided against Revenue.
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2017 (4) TMI 860
Scope of service - whether the food supplied by an employer to the workers at a subsidized rate, would come within the meaning of the expression service, irrespective of whether the food is supplied within the premises or outside the premises? - Held that: - any supply of subsidized food to the workers by the management of a Company, has to be seen as part of the pay package that the workers have negotiated with the employer. Under the Factories Act, 1948 and even under the Industrial Disputes Act, 1947, the expression wages would include within its purview, anything that is supplied at a subsidized rate - the food supplied by an employer to its employees at a subsidized rate forms part of the wages under Section 2(rr) of the Industrial Disputes Act, 1947.
Once the State Authorities have treated the supply of food to the workers of the petitioner as sale, it is not open to the respondents to treat the same as service and impose a liability - petition allowed - decided in favor of petitioner.
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2017 (4) TMI 859
Validity of challenge made against order-in-original - the appellant chose to take recourse to an appellate remedy against the order-in-original, albeit, after the prescribed period of limitation had expired - Held that: - It is settled law that statutory forums and/or Courts, can and/or do decide matters both rightly and wrongly, albeit, within the limits of their respective jurisdictions. Erroneous orders of statutory forums and/or courts can only be corrected by a procedure known to law - keeping in view of the contention that the order-in-original was passed in breach of principles of natural justice, we can only state that, if, this assertion is correct, it is an error pertaining to jurisdiction, which could have, perhaps, been corrected, if, appropriate timely steps had been taken by the appellant, which could include a remedy by way of a petition filed under under Article 226 of the Constitution - after more than six years have expired, the appellant cannot be permitted to challenge the order-in-original via the present proceedings - appeal dismissed - decided against appellant.
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2017 (4) TMI 858
Imposition of penalty u/s 78 of FA, 1994 - It was noticed by the department that appellants did not file ST-3 returns and did not discharge their service tax liability for the period from April 2010 to March 2011 - case of appellant is that they had provided the services to Government Departments and they did not receive the service tax component. They could not discharge their tax liability only because of financial hardships - Held that: - total demand raised is arrived from the financial statements and such other documents furnished to the department by the appellant. Nothing hidden was unearthed by the department. Mere non-payment of service tax and mere non-filing of returns does not attract the provisions of Section 78 as it contains the words fraud, wilful mis-statement and suppression of facts - The impugned order is modified to the extent of setting aside the penalty imposed under Section 78 only without disturbing the confirmation of demand, interest thereon or the late fee imposed u/s 77 of FA, 1994 - appeal allowed - decided partly in favor of assessee.
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2017 (4) TMI 857
Refund of interest - demand held as time barred - case of appellant is that interest is of compensatory nature and since the demand itself is held to be time barred, the appellant is not liable to pay the same. The interest cannot be retained by the department - Held that: - Merely because an assessee pays an amount prior to the issuance of SCN, or before passing of adjudication order, he cannot be put into a disadvantaged position than an assessee who pays the amount after the stage of adjudication or at any other appellate stage - even though the appellant paid the amount voluntarily prior to issuance of show cause notice, he has contested the demand. At the level of adjudication itself, the demand in respect of the period 2005-06 was set aside as being time barred. In such a case, the appellant can claim refund of service tax as well as the interest thereon - the rejection of claim for refund of interest is improper - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 856
Imposition of penalties u/s 76, 77 and 78 of the FA, 1994 - payments made to the overseas parties - Held that: - the appellant have discharged the service tax liability along with interest thereof for the period 18/04/2006 onwards on the amounts paid by them to the overseas service providers as provided u/s 66A of the FA, 1994 - the entire service tax along with interest thereof has already been paid by the appellant on being pointed out. Since the appellant has already paid the entire tax liability along with interest before issuance of show cause notice, we find that the ratio of the decision of the Hon’ble High Court of Karnataka in the case of Commissioner V. Manipal County [2011 (9) TMI 1094 - KARNATAKA HIGH COURT] will apply where it was held that provisions of Section 73(3) of the FA, 1994 will be applicable in cases wherein appellant has discharged service tax liability and the interest thereof on being pointed out by the authorities before the issuance of the SCN, and there is no necessity to issue SCN for penalties - penalties set aside - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 855
Banking and financial services - Extended period of limitation - amounts paid by appellant to various service providers who had facilitated raising of External Commercial Borrowings (ECB) during March 2007 - taxability - Held that: - the service tax liability arises under Section 66A of the Finance Act, 1994 and is already discharged by the appellant. At the same time, there cannot be any intention to evade the service tax liability as the entire service tax paid under reverse charge mechanism can be availed as CENVAT credit by the appellant for the discharge of Central Excise duty on the various products manufactured by them - impugned order set aside on revenue neutral situation - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 854
100% EOU - Rent-a-Cab service - buses used by the appellant for transportation of employees of their customers from the residential premises to workplace and vice-a-versa - Held that: - the issue is now squarely covered by the decision of the Hon’ble High Court of Uttarakhand in the case of Commissioner, Customs And Central Excise, Meerut-I Versus M/s. RS. Travels [2014 (10) TMI 817 - UTTARAKHAND HIGH COURT], where it was held that when there is only a contract of hire and there is no renting of the cab, there is no question of the assessee being assessed in respect of services rendered in connection with rent–a-cab as there is no renting at all - the service recipient of the appellant, who is a 100% EOU, benefit of non-payment of service tax or refund of the service tax paid, can be claimed by the 100% EOU, this is a revenue neutral situation - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 853
Invocation of section 73(4) of FA, 1994 - Levy of penalty - case of appellant is that the provisions of section 73(3) of FA, 1994 is squarely applicable to them, that with the insertion of Explanation 2 therein, the imposition of penalty is not warranted, that w.e.f. 10th May 2008 penalties u/s 76 and section 78 were mutually exclusive, and that section 80 of FA, 1994 should have been invoked - Held that: - the adjudicating authority has failed to record any evidence to demonstrate that there has been suppression with intent to evade tax and with the ingredients for imposition of penalty being conspicuously absent, there is no scope for recourse to section 73 (4) of Finance Act, 1994 to issue notice for confirmation of tax and for imposition of penalty - there was every reason to resort to section 73(3) of FA, 1994 to stop further proceedings consequent upon the payment of tax and interest in full - penalties set aside - appeal allowed - decided in favor of assessee.
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